Selected Hot Constitutional Issues
[New issues will be posted here from time to time.]
1. Is the penalty imposed by the 2010 Heath Care Act for failure to purchase health insurance punishment for "an inactivity" and therefore outside of the reach of the Commerce Clause power of Congress which, arguably, reaches only "activities" affecting interstate commerce?

2.  Do certain provisions of Arizona's tough new immigration law violate the Supremacy Clause?  The Department of Justice thinks so and has sued the state in federal court.  The federal government argues that control of national borders is a national, not a state, concern and that state laws on the subject run the risk of messing up national enforcement efforts.  The federal government, it is contended, has the right to set its own enforcement priorities free of potentially conflicting state enforcement efforts.

3.  Would giving the District of Columbia a vote in the House of Representatives violate the Constitution? [posted 2/23/2009]

Relevant provisions of Constitution:

Article I, Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.

Article I, Section. 8.
The Congress shall have Power To...exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.

Amendment 23.
Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.
The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.
The Congress shall have power to enforce this article by appropriate legislation.

Senate Bill (official summary):
District of Columbia House Voting Rights Act of 2009 - Considers the District of Columbia a congressional district for purposes of representation in the House of Representatives.
Declares that the District shall not be considered a state for purposes of representation in the Senate.
Applies to the District in the same manner as it applies to a state the federal law providing for the fifteenth and subsequent decennial censuses and for apportionment of Representatives in Congress. Limits the District to one Member under any reapportionment of Members.
Modifies the formula regarding the number of presidential electors to subject it to the 23rd amendment to the Constitution in the case of the District.
Increases membership of the House from 435 to 437 Members.
Provides for a reapportionment of Members resulting from such increase.
Requires the: (1) President to submit to Congress a revised version of the most recent statement of such apportionment identifying Utah as the state entitled to one additional Representative; and (2) Clerk of the House, upon receipt of such revision, to identify such state to the Speaker of the House.
Repeals provisions of: (1) the District of Columbia Delegate Act establishing the office of District of Columbia Delegate to the House of Representatives; and (2) the District of Columbia Statehood Constitution Convention Initiative of 1979 providing for election of a Representative for the District.
Makes conforming amendments to the District of Columbia Elections Code of 1955.
Sets forth procedures for expedited judicial review of any action brought to challenge the constitutionality of any provision of this Act or any amendment made by it.

Link to full text

Background Story:

Prospects good for DC residents to finally get a vote in Congress

February 23, 2009

WASHINGTON - Call the nation's capital home, and for some 200 years you have paid taxes and gone to war for your country but you didn't get a vote in Congress.

Residents of the District of Columbia have chafed over their second-class status, and for nearly a decade many have displayed "taxation without representation" license plates on their cars to signal their outrage.

All that could change with key votes this week in the Senate.

Debate opened Monday on a bill to give the 600,000 people of Washington D.C. a full vote in the House. A new Democratic president, Barack Obama, and heftier Democratic majorities in Congress have improved the prospects for the decades-long effort that would certainly ensure another Democrat lawmaker in Congress.

Democrats outnumber Republicans by some 4-to-1 in the capital.

In a bit of horsetrading to offset the Democratic pickup, the bill would award a fourth House seat to Republican-leaning Utah, which narrowly missed getting that extra seat after the 2000 national census. With the two new seats, the House would have 437 representatives.

The time is ripe, said Ilir Zherka, executive director of the advocacy group DC Vote, to end a situation where "we are the only capital of a democracy on the planet that denies voting representation in the national legislature."

It's been that way since the Organic Act of 1801 when Congress took over control of the newly created capital on the Potomac but did not provide residents with voting rights.

The 23rd Amendment, ratified in 1961, gave D.C. residents the right to vote in presidential elections, and the 1973 Home Rule Act provided for the direct election of the mayor and other city officials.

But a constitutional amendment approved by Congress in 1978 that would have given D.C. residents representation in both the House and the Senate failed to be ratified by the necessary three-fourths of state legislatures.

Opponents argue that the constitutional amendment route is still the only legitimate way to go, pointing to Article I, Section 2 of the Constitution, which says members of the House should be chosen "by the people of the several states." The District of Columbia, of course, is not a state.

On the other side, supporters cite language in the Constitution that gives Congress legislative authority over the District "in all cases whatsoever." They contend that for 200 years federal courts have framed the District's laws in terms of those that apply to the states.

Congress almost passed the bill to give the district a full vote in the House in 2007; it sailed through the House by a comfortable margin but then fell three votes short of the 60 votes needed to get past opponents in the Senate.

But much has changed since then. Democrats, who overwhelmingly support the legislation, increased their majority in the Senate by at least seven, to 58-41. Of the eight Republicans who voted to advance the bill in 2007, seven are back. And unlike former President George W. Bush, who threatened to veto the bill, Obama supports it.

"We are very optimistic that we are going to have the votes" Tuesday, when Senate supporters will again try to clear that 60-vote threshold to advance the bill toward a final vote later in the week, Zherka said.

Senate approval would send the bill to the House, which could take it up in early March. With the president's signature, D.C. residents would elect a representative with full voting rights from January, 2011.

The district has been represented since 1991 by Delegate Eleanor Holmes Norton. Norton, who, with five other delegates from island territories, can vote in committees and on some amendments on the House floor but not on final passage of legislation.

The bill is S. 160.


At the very least, the District of Columbia Voting Rights Act is highly dubious as a constitutional matter.  If it becomes law, as appears likely, who would have standing to challenge the law?  A member of Congress? Only someone injured by a law passed by a single vote (including the vote of the D.C. delegate)?  No one?  Is the matter a political question?

Link to Next Hot Issue:

4.  Can school officials strip search a thirteen-year-old girl suspected of giving ibuprofen to a classmate?

Exploring Constitutional Law